President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution

Bush Administration Nominees

President Bush announced his first set of nominations on May 9, 2001, nominating eleven individuals to appellate court seats. On a positive note, Bush re-nominated Roger Gregory to the Fourth Circuit court of appeals, and also nominated African American Barrington Parker Jr., a Clinton district court appointee, to the Second Circuit. On the other hand, a significant number of Bush's initial picks, as well as several made later, have come under fire as right wing ideologues with troubling records on civil rights and civil liberties. A Detroit Free Press editorial noted that nominees "seem to have been selected because of their ideology, not their judicial qualifications." Newsday suggested that the initial nominees were "peppered with members of the Federalist Society, heavy on states'-rights rhetoric, and inhospitable to abortion rights."

Here are very brief profiles of some of the most troubling of the administration's appeals court nominees so far:

Jeffrey Sutton, nominated to the Sixth Circuit court of appeals, has been criticized for extensive efforts as an appellate lawyer to curtail congressional authority and limit federal protections against discrimination and injury based on disability, age, race, religion, and sex. Sutton serves as an officer in the Federalist Society's Separation of Powers and Federalism practice group. As of July 3, 2001, more than 50 national groups and over 220 regional, state, and local organizations have opposed his confirmation, including the National Rehabilitation Association, the American Association of Persons with Disabilities, the Welfare Law Center, and the National Women's Political Caucus. As the Wall Street Journal reported, Sutton was described even by one of his supporters as the "perfect kind of poster child for what Democrats see as prototypical George W. Bush judges."

Michael McConnell, a University of Utah law professor and Federalist Society member nominated to the Tenth Circuit court of appeals, has generated significant criticism, focusing on his views on reproductive choice, privacy, and church-state separation. For example, McConnell has called the Supreme Court ruling in Roe v. Wade "illegitimate" and "an embarrassment", and signed a 1996 "pro-life" statement that asserted that abortion "kills 1.5 million innocent human beings in America every year" and called for a constitutional amendment to ban abortion. He has also advocated a "radical" departure from decades of First Amendment decisions by the Supreme Court, such as rulings forbidding government-sponsored prayer at public school graduations.

Priscilla Owen, a Society member and currently a justice on the Texas Supreme Court, has been nominated to the U.S. Court of Appeals for the Fifth Circuit. Owen has been criticized as one of two justices on "the far right wing" of the Texas court, further to the right than Bush's own appointees to that court when he was governor. In a Texas Supreme Court decision in which she dissented, Owen called for a very narrow view of a state law concerning the ability of minors to obtain an abortion without parental consent. Then Texas Supreme Court Justice Alberto Gonzalez, who is now chief White House counsel, warned that adopting the dissenters' view "would be an unconscionable act of judicial activism."

Carolyn Kuhl, a state superior court judge and Federalist Society member nominated in June, 2001 to the Ninth Circuit Court of Appeals, has been severely criticized for her record on civil rights, privacy, and reproductive rights. For example, while in the Reagan Justice Department, she reportedly played a key role in convincing the Attorney General to reverse prior policy and support a policy that would have granted tax-exempt status to Bob Jones University despite its racially discriminatory practices, an approach rejected by the Supreme Court by an 8-1 vote. She also urged the Supreme Court to overturn its Roe v. Wade ruling as "flawed."